The artist, Jill Coccaro, "who now goes by the name Phoenix Feeley" (no immature jokes, please), relied on a 1992 decision of the New York Court of Appeals, the state's highest court, which held that prohibiting women, but not men, from going topless violated equal protection.

In case you think I'm making that decision up, it really exists. I found a copy of the decision at a nudist "naturist" website, and it's totally for real.

The majority percuriam opinion tries to avoid the constitutional issue by making an analogy to a different statute that was intended to address the problem of topless waitresses (and I know many of you don't think that's a "problem" at all). So it holds that ordinary toplessness by ordinary women is not covered by the statute. Did I just say "not covered"?

The concurring opinion proceeds to get all funky.

Appellants and the five other women who were arrested with them were prosecuted for doing something that would have been permissible, or at least not punishable under the penal laws, if they had been men--they removed their tops in a public park, exposing their breasts in a manner that all agree was neither lewd nor intended to annoy or harass. As a result of this conduct, which was apparently part of an effort to dramatize their opposition to the law, appellants were prosecuted under Penal Law § 245.01, which provides that a person is guilty of the petty offense of "exposure" when he or she "appears in a public place in such a manner that the private or intimate parts of his [or her] body are unclothed or exposed." The statute goes on to state that, for purposes of this prohibition, "the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola."1 The statute thus creates a clear gender-based classification, triggering scrutiny under equal protection principles (see, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397).

OK, now comes the fun part. The concurrence says that "the State has the burden of showing that the classification is substantially related to the achievement of an important governmental objective," which probably isn't too hard to meet if you accept the idea that women and men have different "intimate parts," but if you're a lawyer, that's way too simple. And it didn't help that the State failed to mount any defense of the statute.

So here's the concurrence:

Although protecting public sensibilities is a generally legitimate goal for legislation (see, e.g., People v. Hollman, supra), it is a tenuous basis for justifying a legislative classification that is based on gender, race or any other grouping that is associated with a history of social prejudice (see, Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 ["(c)are must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions"]). Indeed, the concept of "public sensibility" itself, when used in these contexts, may be nothing more than a reflection of commonly-held preconceptions and biases.

This is totally hilarious. Treating biological differences between men and women differently is a reflection of bias? I have a friend who took an employment discrimination class with the famous Catherine MacKinnon, who was insisting that all distinctions between men and women were socially constructed. At the break, he asked her whether this applied to male voice changes after puberty. Her response was that we are acculturated (I can't remember the exact word she used) to believe that post-pubescent males have lower voices.

So according to the concurrence in the New York Court of Appeals, the fact that female breasts are significantly different from male breasts (vive la difference!) bears no relationship to whether it's permissible to require them to be covered.

Next question for the Court of Appeals: Does a law requiring that male and female genitalia be covered violate equal protection because women aren't required to cover their penises and men their pudenda?

And as long as we're raising questions, why did the New York Post, which obviously thought it was just great for Phoenix Feeley to go out topless on the streets of Manhattan, show a photo of her with her hair covering her breasts? Paging Daniel Henninger.

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